RBG and Neil Gorsuch Teaming Up Couldn’t Stop a Bad Ruling in a Big Double Jeopardy Case

Supreme Court Justices Neil Gorsuch and Ruth Bader Ginsburg
Supreme Court Justices Neil Gorsuch and Ruth Bader Ginsburg Photos by Chip Somodevilla/Getty Images, Mandel Ngan/AFP/Getty Images.

Prosecutors, breathe easy: The Supreme Court upheld a cavernous exception to double jeopardy on Monday, allowing states and the federal government to continue punishing individuals for the same crime. Only Justices Ruth Bader Ginsburg and Neil Gorsuch dissented from the court’s 7–2 decision in Gamble v. United States, each accusing their colleagues of warping the Constitution to diminish individual liberty. Meanwhile, Justice Clarence Thomas seized on the ruling to write an ode to the joys of overturning precedent—even as he refused to overturn precedent in the case at hand. After decades of well-deserved criticism by scholars and judges, the double jeopardy loophole has emerged stronger than ever.

No casual reader of the Constitution would assume that state and federal prosecutors could take turns trying one person for the same misdeed. The Fifth Amendment guarantees that individuals may not “be subject for the same offence to be twice put in jeopardy of life or limb.” The 14th Amendment applies that fundamental component of due process to the states. So the rule here might seem simple: When the government accuses you of doing something illegal, it gets to try you once. And whether you’re acquitted or convicted, it doesn’t get a second bite at the apple.

The Supreme Court, however, has long read an exception into this principle, fixating on which government tries you for the alleged crime. Federal and state governments, the court asserted, are “separate sovereigns,” so each gets a chance to throw you in prison for the same misdeed. In practice, this loophole allows federal and state prosecutors to impose double punishments. If you’re acquitted in state court, the feds can try you all over again in federal court (and vice versa). Even if you’re convicted in state court, the feds can convict you all over again in federal court (and vice versa).

That’s exactly what happened to Terance Gamble, the defendant in Monday’s case. Alabama authorities caught Gamble carrying a firearm illegally and brought charges under state law, securing a one-year prison sentence. Then federal prosecutors, apparently discontent with that sentence, brought charges under federal law, adding nearly three years to Gamble’s sentence. He protested, urging SCOTUS to overturn the “separate sovereigns” exception to double jeopardy.

In an opinion by Justice Samuel Alito, the court refused. Instead, Alito shored up constitutional basis for the exception, insisting that “it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place.” An “offence,” Alito wrote, is “defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two ‘offences.’ ” The people “split the atom of sovereignty” (whatever that means) between states and the federal government, giving each the power to punish crimes. In short, then, “a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.”

Ginsburg and Gorsuch weren’t having it. Their dissents overlap substantially, though it took Gorsuch 25 pages to get across what Ginsburg says in 12. Both make three basic points. First, a slew of “early American courts” disfavored “the prospect of successive prosecutions by the Federal and State Governments.” So did the “Framers of the Bill of Rights,” as well as their preferred legal authorities. (For those counting, Gorsuch found that Alito’s “offence” theory was rejected by “Roman law,” “Athens,” and “the Jewish republic,” as well as English, Roman, Gothic, and “ancient Saxon” law.) So it seems doubtful that the authors of the Constitution created “a colossal exception to this ancient rule,” as Gorsuch framed it.

Second, Ginsburg and Gorsuch wrote that Alito’s theory of sovereignty gets it backward. After all, “ultimate sovereignty” lies in the people, not the government. As Alexander Hamilton put it, the federal and state governments “are to be regarded as ONE WHOLE,” with the people serving as the “original fountain of all legitimate authority.” So under the Constitution, Gorsuch explained, “the federal and state governments are but two expressions of a single and sovereign people.” And as Ginsburg put it, “[i]nsofar as a crime offends a sovereign, that ‘sovereign’ is the people,” not a government. This argument strikes me as far more persuasive than Alito’s “offence” wordplay.

Third, Ginsburg and Gorsuch contended that Alito’s interpretation warps federalism, the division of power between the federal and state governments. Quoting James Madison, Ginsburg wrote that federalism should be “a double security [for] the rights of the people.” Yet the separate sovereigns doctrine “scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty.” Gorsuch agreed, arguing that the Framers “sought not to multiply governmental power but to limit it” and complaining that “today’s Court invokes federalism not to protect individual liberty but to threaten it, allowing two governments to achieve together an objective denied to each.”

Given the similarities between these two dissents, why didn’t Ginsburg and Gorsuch join each other’s opinions? I suspect it has to do with their disparate treatment of stare decisis, or respect for precedent. Ginsburg framed Gamble as the rare case that could overturn more than a century of precedent without profoundly disrupting the law, since “overruling the separate-sovereigns doctrine would not affect large numbers of cases.” Gorsuch, by contrast, launched an attack on “blind obedience to stare decisis,” favorably citing two recent controversial 5–4 decisions that overturned precedent: Janus v. AFSCME and Franchise Tax Board v. Hyatt. Presumably, Ginsburg could not endorse Gorsuch’s zeal to overturn precedents simply because a majority of the court dislikes them.

But Gorsuch was downright restrained in comparison to Thomas’ missive against stare decisis in Gamble. Reading like a communiqué from the Federalist Society underground, Thomas’ concurrence scorned stare decisis as “elevat[ing] demonstrably erroneous decisions” over “the text of the Constitution.” The justice found little, if any, room for adherence to precedent in the American system when a majority thinks that precedent is wrong. Adhering to an incorrect decision “disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.” It doesn’t matter if millions of Americans have relied on a certain precedent and ordered their lives around it. It doesn’t matter of hundreds of lower courts have applied it throughout the country, or if dozens of SCOTUS justices have affirmed it. Thomas continued: “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”

Weirdly, though, after that epic wind-up Thomas found insufficient evidence to overturn the separate sovereigns doctrine. His repudiation of stare decisis isn’t really about Gamble. It’s aimed at a clear set of precedents—those enshrining a constitutional right to abortion access and same-sex marriage.

In the end, Gamble doesn’t tell us much we didn’t already know. Ginsburg and Gorsuch have fierce libertarian streaks, but most of the court doesn’t share their disgust with the double jeopardy loophole. Before Monday, the separate sovereigns doctrine seemed to stand on shaky ground, suffering cross-ideological criticism from judges and scholars. Now it’s clearly here to stay. That’s a shame for criminal justice reform, since Gamble empowers state and federal prosecutors to continue to collude in hopes of obtaining a maximum punishment. Monday’s decision is a blow to individual liberty but a victory for stare decisis. It leaves Americans vulnerable to prosecutorial zeal in the name of constitutional stability. I am not convinced the trade-off was worth it.